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Monday, 7 July 2014

The media discussion around the conditional
discharge of Korotangi Paki, son of King
Tiheitia, has drawn both
public anger, and some useful
public discussion about the exercise of
judicial discretion. Korotangi Paki, 19,
had previously pleaded guilty to charges of burglary, theft and drink driving,
but was not convicted after his defence successfully argued that would ruin his
chances of succeeding to the Kingitanga throne.
It brought back memories of my policing days when from time to time,
young offenders were discharged without conviction on the grounds that a
conviction would have adverse consequences on their future career and
prospects. Law students seemed
particularly prone to causing minor destruction and mayhem, or drink driving. They
were usually represented in Court by
highly competent and very expensive counsel, and much to the chagrin of the
Police, were subsequently discharged
without conviction. Some years later these
young miscreants emerged as solid citizens, making both a positive contribution
to society and lots of money, successfully representing the next generation of
the legal profession who had fallen afoul of the law. It brought home to me the virtues of ‘second
chance’ redemption.

It wasn’t only
law students. Others of influence were
able to mount compelling reasons why on this one occasion, the Court should
exercise its mercy. I recall the two
sons of one of Wairarapa’s first families, being asked to leave Orisini’s
Restaurant after becoming very drunk and disorderly. They retaliated by rooting out the rose
bushes that grew in the small garden outside the restaurant. With the support of good legal advice, they
were discharged without conviction, and went on to become venerated citizens
who these days, produce some of the
country’s best wines – which I’m sure they never drink to excess.

Are Applications
for Discharge without Conviction Common?

Section 106, ofthe Sentencing Act 2002 provides thatIf
a person who is charged with an offence is found guilty or pleads guilty, the
court may discharge the offender without conviction. Some legal firms
specialise in making S.106 applications on behalf of clients, and claim
considerable success.Guardian Chambers for example say that:

“Members of Guardian Chambers have literally made 100’s of discharge
applications and have had outstanding success in avoiding criminal convictions
for their clients which has meant they can honestly place a tick in the ‘no’
box next to the question “Have you ever had a criminal conviction?” whether it
be contained in a travel document, a job application or any one of many
applications that they make in the course of their lives.”

“It is
essential to notethat the court must not discharge an offender
without conviction unless the court is satisfied that the direct and indirect
consequences of a conviction would be out of all proportion to the gravity of
the offence. This test has been described by the Court of Appeal as “a gateway
through which any discharge without conviction must pass.”

I don’t know how
many offenders are successful in achieving a discharge without conviction, but
by all accounts, it is a common practise.
All one needs is money and a lawyer.

Why all the fuss?

What
makes this application different? I don’t
have access to the detailed argument submitted on Korotangi’s behalf, and it is
always dangerous to comment on individual cases without it. However, on the face of it there are three
aspects of this case that make it both different and interesting. First, that the offender is Māori. While Māori are six times more likely to end
up in prison that non-Māori, they are not six times more likely to make an application for discharge without
conviction. The do not have the
resources to do so. Visit your local District Court and note the extent to
which Māori appear before the Court without legal representation.

The graph below
gives an indication of the differential treatment of Māori within the judicial
system. (1) The dark blue portion represents the Maori population at 14% of the general popultion. It then shows the over-representation of Maori at each stage of the judicial process.

S

Second, Korotangi is not a typical first-time offender.While his offending is fairly low-level,his profile suggests that he is a troubled young man, who unless constrained will descend into a cycle of offending driven by alcohol dependency.

Third, he is the son of the King Tuheitia Paki, whose span of influence extends well beyond Tainui iwi and the Kingitanga movement. It is an influence which exceeds that of the wealthy parents of law students, and even possibly, Wairarapa’s first families

Public Reaction In Support of the
Decision

Media Coverage
on this issue was evenly balanced. On NewstalkZB, Mike Hosking interviewed lawyer Annette Sykes, who did an excellent job of explaining the reasons why the Judge’s decision was
appropriate.First, the three
co-offenders had been previously sentenced and were discharged without
conviction. In such cases, there needs to be equality of treatment.Second, that ‘Marae Justice’ had already been
dispensed i.e. Korotangi has had to make significant reparation, is required to
address his alcohol problem, and must walk a long and difficult journey back to
redemption.He has brought the name of
his father, and Tainui into serious disrepute.The shame was not confined to the offender, but is now collectively
experienced by the tribe.

Newstalk ZB's’s interview of law lecturer Kylee Quince confirmed the view that while he escaped without conviction, he did not
escape punishment. As Kylee comments;

"His particular
position is unusual but looking to someone's future life and career prospects,
those are always things that a judge is able to and appropriately does take
account of."

Public Reaction Against the Decision

The media reaction against Judge Phillipa
Cunningham’s decision, was swift, and included criticism of Korotangi, the
Judge, and disparaging remarks about the Kingitanga movement itself. Whale Oil’s Cameron Slater referred to Korotangi as a ‘royal ratbag’, and the influence of the ‘bro-racracy and Māori royalty’. The decision ‘pandered to the sensitivities
of fake royalty’ and Phillippa Cunningham has shown that she is a ‘dud judge’.

In
similar vein, at No Minister, The Veteran’s post (which misspelt Korotangi’s Name) claimed that the
decision was ‘ favour based on colour of skin and supposed
family status’.. Lindsay Mitchell in her
blog ‘Māori Prince hides under Daddy’s Korowai’ took the unusual step of acknowledging her
own conviction over drink driving at an early age, being fined and disqualified
and commented that she was ‘deeply ashamed.
She explains:

“I
got a drink/driving charge at a similar age. Just over the limit, fined $300
and disqualified for six months, I lost my job. I was deeply ashamed. It was a
rock bottom point in my life but accepting the consequences turned me around.” She takes the view that “his father should let
him face the same fall-out as anyone else. Particularly that faced by many a
less privileged Māori. Classism is alive and kicking within Māoridom.”

The Differential Impact of Public Shaming

The one
aspect of this case, that distinguishes it from most s.106 applications, and
one which

is not well understood, is the differential impact of shaming. Lindsay’s final paragraph provides a useful
platform from which to examine that issue more closely.

In early New Zealand, public
sanctioning quickly became the norm.
Māori approved the use of the
stocks as punishment for theft and similar crimes. Public punishments and the infliction of
bodily pain were seen in some cases as culturally appropriate. The death penalty was also seen to be
appropriate for serious crime, with Chiefs demanding the right to kill in
certain cases. At the same time, there
was tribal resistance to the imposition of severe sentences on chiefs or
persons of significant mana. So to that
extent, Lindsay is right – the Māori expectation in the early days was that
people of significance should not be subjected to indignity or disrespect – their
mana would have been disproportionately undermined by that treatment.

Public displays of punishment were moral
degradation ceremonies in which the crowd played a key role in the renewal of
community values through their recognition of the offender’s wrongdoing.(2)
Public flogging was part of New
Zealand’s early history, but was
abandoned by the 1860’s.

While the criminal justice system steadily moved from the public infliction of pain, which was seen as degrading and counter- productive to reformation, the public were not prepared to surrender totally, its appetite for public shaming.

Public shaming also played an important
part in Māori indigenous practise, and met the criteria for ‘reintegrative
shaming’ as described by Braithwaite.(2)
Māori have a number of proverbs
about shame, which present the issue in a nuanced way and from different
perspectives. –“Waiho mā te
whakamā e patu” “Let
Shame be Your Punishment” acknowledged
that public shaming within a tribal setting, was often sufficient to bring
moral order to the community. The second
half of the proverb, “Waiho hai kōrero
I a tātou kia atawhai ki te iwi.” Let us acquire fame
by being merciful” honours and
acknowledges the value of mercy and compassion and the status acquired by those
who exercise it.

There
is a substantial ‘shaming’ literature, which identifies the impact of public
shaming on reoffending. The most
effective public shaming occurs within tribal societies or communities with
high social cohesion. Public shaming of
white collar criminals, normally law-abiding citizens (think Lindsay) and organisational crime i.e. crimes of the
powerful, have been shown to be effective.(3)

This
research accords with my policing experience, in which I recall two incidents
in which offenders came from closed, highly -cohesive communities. The shaming impact in both cases was
significant. The first was a 15 year old
Chinese boy, whose widowed mother was struggling to provide. In his desire to avoid being the only boy at
the school social wearing short pants, he shoplifted a pair of long trousers –
and got caught. The response from the
Chinese community was both immediate and severe. Elders from the Chinese
community visited me, not to ask for the exercise of Police discretion, but to
assure me that they were taking measures of their own. He was stood down as a youth leader,
prohibited from attending Chinese social functions and required to work on
community projects for the next two years.
The elders visited the department store with the young man, to render a
formal apology, and provide reparation. The
Police administered a warning, secure in the knowledge that this young man was
being held accountable to the people he had shamed.

The
second example involved a Tongan Police recruit, who on the night of his
graduation got very drunk, and interfered with a police inquiry into a traffic
accident outside a hotel. He was on the
verge of being arrested, but as the Senior Sergeant in charge, I decided to
apply discretion, and instead, called a meeting with his fanau and church
leaders the next day, to voice my displeasure at his behaviour. I learnt subsequently that his uncles
administered a beating of such severity that he spent the next week on his back. By all accounts, he resumed his Police
career, and made a solid contribution.

In
those examples, shaming had its place.
In Lindsay’s recounted experience, hers was a personal shame, but in
addition was shared by those to whom she felt accountable. However, the extent to
which personal, family or tribal shaming becomes a matter of wide public
knowledge has the potential to impact negatively on the offender. Interestingly, Lindsay provided a link in her
blog, to an incident involving Korotangi three years ago, when he crashed a
car. The disadvantage
and downside of status and prestige, or being related to someone with those
characteristics, means that incidents which normally would merit three lines in
the local newspaper, suddenly become national news.

Lindsay’s
view is that “Korotangi’s father should
let him face the same fall-out as anyone else.
Particularly that faced by many a less privileged Māori.”

If
there is one thing that is painfully clear, it is that the shaming of the
powerless in the absence of positive reinforcement by the offender’s community has
the opposite effect to that of offenders who live in cohesive and closely
integrated communities. Braithwaite and Drahos put it this way: z

“The problem with public shaming is that it
leaps from that truth to policies that stigmatise and degrade. It is not simply
that stigmatisation is a less effective way of making people feel ashamed of
wrongdoing than reintegrative shaming; it actually makes them feel less
ashamed. It is not that respectful disapproval within communities of care works
while stigmatisation does not; stigmatisation actually increases crime.”(4)

On the basis
of current ‘public shaming’ research,
the management of any situation in which either the victim or the
defendant are, through widespread publicity, likely to be shamed in a way which
stigmatises them and their family or whānau, should be subject to judicial management. For low level marginalised offenders,
widespread television coverage will only serve to further stigmatise and
increase the likelihood of future reoffending.

We have
reached a situation todaywhen the practise of public shaming, while
divorced from the public imposition of pain, is still practised. The vast majority of New Zealanders no longer
exist in tribal communities, including most Māori. There
are a handful of small rural communities
that enjoy a high level of social cohesion.
As the current research on inequality shows, we have become largely a
society of ‘haves’ and ‘have-nots’ – but the practise of public shaming
persists regardless ; and the responsibility for its exercise has shifted from
the judiciary to the media.

The
Kingitanga Movement

Some of
the commentators took the opportunity to ‘dismiss’ the Kingitanga as ‘ersatz
royalty’. On the contrary, it is a
strongly cohesive. The Kīngitanga
parliament, the Kauhanganui, was established at Maungakawa about 1890, and today it’s 129 members, represent
65 Tainui marae. Twenty six of those
marae are Poukai marae which have
been regularly visited by the Māori King
or Queen since the 1860’s. Poukai hui
host an annual circuit
of visits by the king that includes feasting, cultural performances and tribal
discussion. The level of social cohesion is extraordinary, and the
korero at those hui is to the point, hard hitting, at times ruthless.

It is
those 65 marae to whom Korotangi will be accountable for his future
behaviour. Some of the marae
personalities will compose waiata paoor
ditties, about Korotangi. The term ‘paopao’
means gossip, and many pao are gossip songs which treat the misfortunes of
their subjects in very direct and often slanderous terms. He may acquire a new nickname or two, perhaps
addressed not directly to him, but about him.
I am surprised that former Minister of Māori Affairs and Ngapuhi
kaumatua Dover Samuels chose to
voice his disagreement with the decision through the Pākehā media, referring to the Judge as suffering
from ‘cultural hypnosis’. I would pay good
money to hear Dover put his views at a Kingitanga Poukai, where the issue could
be debated in accordance with tradition.

Whakahoki Mauri - Restoring Community Balance

Through this process
his father, whānau and community must share in his shame and
indignity. But overriding all that, will
be a collective desire for Korotangi to take responsibility, be held
accountable; safe in the knowledge that at all times he will have the support
of all of Tainui in beating a difficult and lengthy path back to
redemption. It will take strength and courage to accept that his actions have brought about shame. Once this level of consciousness has been reached, restorative action can begin.

Māori tradition also recognises that
there is a point at which public shaming should stop. This is found in the proverb “Kia ata akiaki
I ahau, he kai ka mate kei te hara o te kaki” –

“Dwell not on my faults, for
the desire for food dies at the throat of sin.”
Continual censure can cause such shame that one can no longer eat and
therefore can no longer make a contribution to the people. After this there was only suicide or
death.

Let’s leave it for Tainui and the Kingitanga to decide when
the censure and shaming should stop. In the process known as 'whakahoki mauri', the goal is to restore community peace and balance. In that scenario, the healthy functioning of a community is measured by a collective sense of well-being, and extends beyond the aggregation of individual behaviour. At that point community peace is restored.

If
we are committed to being ‘Smart on Crime’, why not consider

instead, the
impact that public shaming has on those people who don’t live within a
strong tribal construct, or isolated rural communities. Those who are marginalised, and described as
the ‘dark underclass’. What is the
impact of public shaming on that group?

Over
the last twenty years, there has emerged a body of research, which is directed
at developing strategies for ex-prisoners and offenders from marginalised
communities to socially integrate back into the community(5) It is
on this group that public shaming has adverse impacts on the
efforts of offenders to desist from crime, and make major changes in their
lives. Besides
the legal implications of having a prior conviction, a conviction record poses an obstacle to reintegration (e.g. access to
jobs, housing, education, loss of parental rights). The conviction record
reinforces a criminal identity, is a
major ground for social exclusion, and makes it difficult to adopt a new identity,
i.e. that of a ‘law abiding citizen’.(6)

The impact
on Maori offenders is a particular concern, given thatfor Māori males born in 1975, it is
estimated that 22 percent had a Corrections managed sentence before their 20th
birthday, and 44 percent had a Corrections managed sentence by the age of 35.

What will be the impact of a conviction on
efforts to find a job, suitable housing, and deal with the significant
stigmatisation faced by offenders and prisoners on release? Where is the balance between on the one hand, securing
public safety, and on the other, ensuring the offenders who want to transform
their lives, are not disadvantaged by public shaming and disclosure of their criminal
history.

The
Government’s Better Public Service Reducing Crime and Reoffendingis in our view, an outstanding
initiative that has forced the Justice Sector to work collaboratively on
projects directed at achieving some very aspirational goals. A critical part of that policy is to safely integrate
offenders into the community.(7) This strategy could be the launching pad to
reduce the impact of public shaming and stigmatising of offenders, and in doing
so, reduce the reoffending rate.

Now,
that’s being Smart on Crime.

References

(1) Morrison, Bronwyn, Identifying and Responding
to Bias in the Criminal Justice System: A Review of

International
and New Zealand Research, (Ministry of Justice, November 2007)

(2) John M Beattie, Crime and the Courts in
England (Princeton University Press, 1986) p. 469.

(3)Braithwaite, John ‘Crime, Shame and
Reintegration’ Cambridge University Press, New York 1989 p.81

(4)Braithwaite,
John and Peter Drahos, Zero
Tolerance, Naming and Shaming: Is There
a Case for it with Crimes of the Powerful?
Paper to Australian and New Zealand Society of Criminology
Conference, 30 September, 1999, Perth. Portions of this paper appear in an
earlier version in Global
Business Regulation

(6)Uggen,
U., Mamza, J., Behrens, A. (2004) ’Less than the average citizen’: stigma, role
transition and the civic reintegration of convicted felons, in Maruna,S. &
Immarigeon,R. (eds) After Crime and Punishment.

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